HKSAR v. LAW KIN HING

HCMA 124/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 124 OF 2001

(ON APPEAL FROM WSCC 14906/2000)

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J U D G M E N T

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1. The Appellant appeals against a sentence of 9 months imprisonment posed in respect of a total of 10 offences of Theft. The thefts were from her employer. She was the manageress of a shop and was entrusted to carry on business by her employers, who had returned to live in Canada for a period. Her duties included the use and control of a company cheque book which was left with a quantity of signed, blank cheques, in order to help her to run the business. Over a lengthy period, the Appellant dishonestly misused the company funds, on what turned out to 50 occasions, by filling in the cheques and paying the total sum into her own account. This was done, apparently, because she was having financial difficulties at the time. The total sum embezzled was $522,023.04, although the total sum for the 10 sample charges was $256,474.76.

2. The Magistrate in sentencing took a starting point of 2 years imprisonment and reduced that to 16 months to take account of the plea. He then reduced it by a very substantial period to 9 months in total, to take into account the mitigating factors that he found.

3. He took into account the plea of guilty and noted Appellant's clear record, although recognising that in breach of trust cases, a clear record was of little weight. He took into account the lack of supervision over the Appellant and that the absence of the employers allowed these offences to occur over the lengthy period. He took into account the fact that $270,000.00 had been repaid and noted the anxiety and pressure that the Appellant was under as a result of some delay in bringing the matter to court. He took into account her cooperation with the authorities and her deep remorse. He also took into account the fact that the Appellant was pregnant, but rightly gave that little weight because it was clear conception had taken place after detection of the offence.

4. Eventually, the Appellant was sentenced to one month imprisonment on each of 9 counts, to be served consecutively and one month concurrently on Count 10, which made a total 9 months imprisonment.

5. The grounds of appeal are that the Magistrate was wrong to impose a deterrent sentence for a first offender without calling for a background report. The Magistrate noted that custodial sentences were usually imposed in breach of trust cases to deter others from adopting the same practices. Although there is no rule that a Magistrate is required to ask for a background report, or cannot impose a deterrent sentence on a first offender who is an adult obviously those are matters the Magistrate should take cognizance of before sentencing.

6. The Appellant was represented at the trial and also at the subsequent review. There was ample material before the Magistrate on which he could sentence and which he could take into account in respect of the mitigation. Counsel made a detailed plea in mitigation.

7. It was also submitted on appeal that the Magistrate failed to give sufficient weight to mitigating factors such as full restitution having been made, that the Appellant showed deep remorse, that she had a clear record and that he failed to note the importance of rehabilitation.

8. Having been through the Magistrate's Reasons for Sentence, as well as his delivery of sentence at the hearing, I am satisfied the Magistrate gave proper weight to those factors. It was also suggested, in the alternative, that if the Magistrate was correct on the matters complained of, mercy should be exercised.

9. The Magistrate in this particular case did give a merciful sentence; he took a starting point of two years and reduced that substantially to a period of 9 months.

10. There is nothing before me which indicates that these sentences were wrong in principle, or too severe and this appeal against sentence is dismissed.